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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Credit (Commonwealth Powers) Bill
2010
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Adoption of existing legislation 3
5 Termination of adoption 3
6 Reference of matters 3
7 Matters excluded from reference 4
8 Termination of reference 5
9 Amendment of Commonwealth law 5
10 Effect of termination of amendment reference before
termination of adoption of Commonwealth Acts 6
Schedule 1 Repeals 7
Schedule 2 Consequential amendment of other legislation 8
Schedule 3 Savings, transitional and other provisions 13
b2009-064-35.d26
New South Wales
Credit (Commonwealth Powers) Bill
2010
No , 2010
A Bill for
An Act to adopt the National Consumer Credit Protection Act 2009 of the
Commonwealth and the National Consumer Credit Protection (Transitional and
Consequential Provisions) Act 2009 of the Commonwealth, and to refer certain
matters relating to the provision of credit and certain other financial transactions to
the Parliament of the Commonwealth, for the purposes of section 51 (xxxvii) of the
Commonwealth Constitution; and for other purposes.
Clause 1 Credit (Commonwealth Powers) Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Credit (Commonwealth Powers) Act 2010. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Definitions 6
(1) In this Act: 7
adoption means the adoption under section 4 (1). 8
amendment reference means the reference under section 6 (1). 9
Commonwealth Credit instrument means any instrument (whether or 10
not of a legislative character) that is made or issued under the National 11
Credit legislation. 12
express amendment of the National Credit legislation means the direct 13
amendment of the text of the National Credit legislation (whether by the 14
insertion, omission, repeal, substitution or relocation of words or 15
matter) by another Commonwealth Act or by an instrument under a 16
Commonwealth Act, but does not include the enactment by a 17
Commonwealth Act of a provision that has or will have substantive 18
effect otherwise than as part of the text of the National Credit 19
legislation. 20
National Credit legislation means: 21
(a) the National Consumer Credit Protection Act 2009 of the 22
Commonwealth, and 23
(b) the National Consumer Credit Protection (Transitional and 24
Consequential Provisions) Act 2009 of the Commonwealth, 25
and as in force from time to time. 26
referred credit matter means a matter relating to either of the following: 27
(a) credit, being credit the provision of which would be covered by 28
the expression "provision of credit to which this Code applies" in 29
the relevant version of the National Credit Code, 30
(b) consumer leases, being consumer leases each of which would be 31
covered by the expression "consumer lease to which Part 11 32
applies" in the relevant version of the National Credit Code. 33
relevant version of the National Credit Code means the text of 34
Schedule 1 to the National Consumer Credit Protection Act 2009 of the 35
Commonwealth as originally enacted, and as later amended by the 36
National Consumer Credit Protection Amendment Act 2010 of the 37
Commonwealth. 38
Page 2
Credit (Commonwealth Powers) Bill 2010 Clause 4
relevant version of the National Credit legislation means: 1
(a) the National Consumer Credit Protection Act 2009 of the 2
Commonwealth as originally enacted, and as later amended by 3
the National Consumer Credit Protection Amendment Act 2010 4
of the Commonwealth, and 5
(b) the National Consumer Credit Protection (Transitional and 6
Consequential Provisions) Act 2009 of the Commonwealth. 7
(2) Notes included in this Act do not form part of this Act. 8
4 Adoption of existing legislation 9
(1) The relevant version of the National Credit legislation is adopted within 10
the meaning of section 51 (xxxvii) of the Commonwealth Constitution. 11
(2) The adoption has effect for a period: 12
(a) beginning when this section commences, and 13
(b) ending at the end of the day fixed under section 5 as the day on 14
which the adoption is to terminate, 15
but no longer. 16
5 Termination of adoption 17
(1) The Governor may, at any time, by proclamation published on the NSW 18
legislation website, fix a day as the day on which the adoption is to 19
terminate. 20
(2) The Governor may, by proclamation published on the NSW legislation 21
website, revoke a proclamation published under subsection (1), in 22
which case the revoked proclamation is taken (for the purposes of 23
section 4) never to have been published. 24
(3) A revoking proclamation has effect only if published before the day 25
fixed under subsection (1). 26
(4) The revocation of a proclamation published under subsection (1) does 27
not prevent publication of a further proclamation under that subsection. 28
6 Reference of matters 29
(1) Subject to section 7, any referred credit matter is referred to the 30
Parliament of the Commonwealth, but only to the extent of the making 31
of laws with respect to such a matter by making express amendments of 32
the National Credit legislation. 33
Page 3
Clause 7 Credit (Commonwealth Powers) Bill 2010
(2) The reference of a matter under subsection (1) has effect only: 1
(a) if and to the extent that the matter is not included in the legislative 2
powers of the Parliament of the Commonwealth (otherwise than 3
by a reference under section 51 (xxxvii) of the Commonwealth 4
Constitution), and 5
(b) if and to the extent that the matter is included in the legislative 6
powers of the Parliament of the State. 7
(3) Despite any other provision, the reference has effect for a period: 8
(a) beginning when this section commences, and 9
(b) ending at the end of the day fixed under section 8 as the day on 10
which the reference is to terminate, 11
but no longer. 12
7 Matters excluded from reference 13
(1) A matter referred by section 6 (1) does not include: 14
(a) the matter of making provision with respect to the imposition or 15
payment of State taxes, duties, charges or other imposts, however 16
described, or 17
(b) the matter of making provision with respect to the general system 18
for the recording of estates or interests in land and related 19
information, or 20
(c) the matter of providing for the priority of interests in real 21
property, or 22
(d) the matter of making a law that excludes or limits the operation 23
of a State law, to the extent that the State law makes provision 24
with respect to the creation, holding, transfer, assignment, 25
disposal or forfeiture of a State statutory right. 26
(2) In this section: 27
forfeiture means confiscation, seizure, extinguishment, cancellation, 28
suspension or any other forfeiture. 29
State law means: 30
(a) any Act of the State or any instrument made under such an Act, 31
whenever enacted or made and as in force from time to time, or 32
(b) the general law, being the principles and rules of common law 33
and equity to the extent that they have effect in the State from 34
time to time. 35
Page 4
Credit (Commonwealth Powers) Bill 2010 Clause 8
State statutory right means a right, entitlement or authority that is 1
granted by or under any Act of the State or any instrument made under 2
such an Act, whenever enacted or made and as in force from time to 3
time, other than a right, entitlement or authority that relates to: 4
(a) credit covered by paragraph (a) of the definition of referred 5
credit matter in section 3, or 6
(b) a consumer lease covered by paragraph (b) of that definition. 7
8 Termination of reference 8
(1) The Governor may, at any time, by proclamation published on the NSW 9
legislation website, fix a day as the day on which the amendment 10
reference is to terminate. 11
(2) The Governor may, by proclamation published on the NSW legislation 12
website, revoke a proclamation published under subsection (1), in 13
which case the revoked proclamation is taken (for the purposes of 14
section 6) never to have been published. 15
(3) A revoking proclamation has effect only if published before the day 16
fixed under subsection (1). 17
(4) The revocation of a proclamation published under subsection (1) does 18
not prevent publication of a further proclamation under that subsection. 19
9 Amendment of Commonwealth law 20
For the avoidance of doubt, it is the intention of the Parliament of the 21
State that: 22
(a) the National Credit legislation may be expressly amended, or 23
have its operation otherwise affected, at any time after the 24
commencement of this section by provisions of Commonwealth 25
Acts the operation of which is based on any legislative powers 26
that the Parliament of the Commonwealth has on account of a 27
reference of any matters, or the adoption of the relevant version 28
of the National Credit legislation, under section 51 (xxxvii) of the 29
Commonwealth Constitution, and 30
(b) the National Credit legislation may be expressly amended, or 31
have its operation otherwise affected, at any time after the 32
commencement of this section by provisions of Commonwealth 33
Acts the operation of which is based on any legislative powers 34
that the Parliament of the Commonwealth has apart from a 35
reference of any matters, or the adoption of the relevant version 36
of the National Credit legislation, under section 51 (xxxvii) of the 37
Commonwealth Constitution, and 38
Page 5
Clause 10 Credit (Commonwealth Powers) Bill 2010
(c) the National Credit legislation may have its operation affected, 1
otherwise than by express amendment, at any time by provisions 2
of Commonwealth Credit instruments. 3
10 Effect of termination of amendment reference before termination of 4
adoption of Commonwealth Acts 5
(1) If the amendment reference is terminated but the adoption of the 6
relevant version of the National Credit legislation is not terminated, the 7
termination of the amendment reference does not affect: 8
(a) laws that were made under the amendment reference (but not 9
repealed) before that termination (whether or not they have come 10
into operation before that termination), or 11
(b) the continued operation in this State of the National Credit 12
legislation as in operation immediately before that termination or 13
as subsequently amended or affected by: 14
(i) laws referred to in paragraph (a) that come into operation 15
after that termination, or 16
(ii) provisions referred to in section 9 (b) or (c). 17
(2) Accordingly, the amendment reference continues to have effect for the 18
purposes of subsection (1) unless the adoption is terminated. 19
(3) Subsection (1) does not apply to or in relation to an amendment of the 20
National Credit legislation that is excluded from the operation of this 21
section by the proclamation that terminates the amendment reference. 22
(4) For the purposes of subsection (1): 23
(a) the laws referred to in subsection (1) (a) include Commonwealth 24
Credit instruments, and 25
(b) the reference in subsection (1) (b) to the National Credit 26
legislation as in operation immediately before the termination of 27
the amendment reference includes that legislation as affected by 28
Commonwealth Credit instruments that have come into operation 29
before that time. 30
Page 6
Credit (Commonwealth Powers) Bill 2010
Repeals Schedule 1
Schedule 1 Repeals 1
The following Acts and Regulations are repealed: 2
Consumer Credit Administration Act 1995 No 69 3
Consumer Credit Administration Regulation 2002 4
Consumer Credit (New South Wales) Act 1995 No 7 (including the Consumer Credit 5
(New South Wales) Code and the Consumer Credit (New South Wales) Regulations) 6
Consumer Credit (New South Wales) Special Provisions Regulation 2007 7
Credit Act 1984 No 94 8
Credit (Home Finance Contracts) Act 1984 No 97 9
Credit (Home Finance Contracts) (Savings and Transitional) Regulation 1984 10
Credit (Savings and Transitional) Regulation 1984 11
Page 7
Credit (Commonwealth Powers) Bill 2010
Schedule 2 Consequential amendment of other legislation
Schedule 2 Consequential amendment of other 1
legislation 2
2.1 Consumer, Trader and Tenancy Tribunal Act 2001 No 82 3
[1] Section 5 Establishment of Consumer, Trader and Tenancy Tribunal 4
Omit the note to section 5 (2). Insert instead: 5
Note. The following Acts confer jurisdiction on the Tribunal: 6
Community Land Management Act 1989 7
Consumer Claims Act 1998 8
Fair Trading Act 1987 9
Holiday Parks (Long-term Casual Occupation) Act 2002 10
Home Building Act 1989 11
Motor Dealers Act 1974 12
Motor Vehicle Repairs Act 1980 13
Residential Parks Act 1998 14
Residential Tenancies Act 1987 15
Retirement Villages Act 1999 16
Strata Schemes Management Act 1996 17
Travel Agents Act 1986 18
The Tribunal also has jurisdiction, on a transitional basis, in relation to 19
the maximum annual percentage rate for credit contracts and certain 20
other matters under the former consumer credit legislation within the 21
meaning of Schedule 3 to the Credit (Commonwealth Powers) 22
Act 2010). 23
[2] Section 68 Rehearings by Tribunal 24
Omit "under the Consumer Credit (New South Wales) Act 1995" from 25
section 68 (13) (b). 26
Insert instead "in respect of which the Tribunal has jurisdiction because of the 27
operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010". 28
[3] Schedule 1 Divisions of the Tribunal 29
Omit clause 1 (b). Insert instead: 30
(b) the Commercial Division, in which the Tribunal's 31
jurisdiction is to be exercised in respect of the following: 32
(i) matters in respect of which the Tribunal has 33
jurisdiction because of the operation of Schedule 3 34
to the Credit (Commonwealth Powers) Act 2010, 35
(ii) matters arising under the Travel Agents Act 1986, 36
Page 8
Credit (Commonwealth Powers) Bill 2010
Consequential amendment of other legislation Schedule 2
(iii) consumer claims under the Consumer Claims 1
Act 1998 that relate to matters arising under 2
section 36 of the Property, Stock and Business 3
Agents Act 2002, 4
2.2 Consumer, Trader and Tenancy Tribunal Regulation 2009 5
[1] Clause 45 Circumstances where reduced fee or no fee is payable 6
Omit clause 45 (1). 7
[2] Clause 45A 8
Insert after clause 45: 9
45A Savings and transitional provision--amendments made by Credit 10
(Commonwealth Powers) Act 2010 11
The following provisions of this Regulation, as in force 12
immediately before their repeal by Schedule 2.2 [1] and [3] to the 13
Credit (Commonwealth Powers) Act 2010, continue to apply in 14
relation to applications for matters referred to in those provisions 15
(being matters in respect of which the Tribunal has jurisdiction 16
because of the operation of Schedule 3 to the Credit 17
(Commonwealth Powers) Act 2010) as if those provisions had not 18
been repealed: 19
(a) clause 45 (1), 20
(b) paragraphs (a) and (b) of the matter, as set out in 21
Schedule 2, relating to applications to have matters dealt 22
with in the Commercial Division. 23
[3] Schedule 2 Fees 24
Omit the matter relating to applications to have matters dealt with in the 25
Commercial Division. 26
Insert instead: 27
Application to have a matter dealt with in the Commercial Division:
(a) if the amount claimed or in dispute is not more than $10,000 $34
or if no amount is claimed or in dispute
(b) if the amount claimed or in dispute is more than $10,000 but $70
is not more than $30,000
(c) if the amount claimed or in dispute is more than $30,000 $183
Page 9
Credit (Commonwealth Powers) Bill 2010
Schedule 2 Consequential amendment of other legislation
2.3 Conveyancers Licensing Regulation 2006 1
[1] Schedule 3 Rules of conduct 2
Omit "Consumer Credit (New South Wales) Code" from clause 23 (2) (d) 3
and (4) (f) wherever occurring. 4
Insert instead "National Credit Code". 5
[2] Schedule 3 6
Insert after clause 23 (6): 7
(7) In this clause: 8
National Credit Code means the National Credit Code as set out 9
in Schedule 1 to the National Consumer Credit Protection Act 10
2009 of the Commonwealth. 11
2.4 Duties Act 1997 No 123 12
[1] Section 223 Mortgages associated with certain credit contracts 13
Omit "consumer" from section 223 (1)(3) wherever occurring. 14
[2] Section 223 (5) 15
Omit the subsection. Insert instead: 16
(5) In this section: 17
credit contract means a credit contract within the meaning of the 18
National Credit Code as set out in Schedule 1 to the National 19
Consumer Credit Protection Act 2009 of the Commonwealth. 20
2.5 Fair Trading Regulation 2007 21
[1] Clause 6 Exceptions 22
Omit "a credit sale contract (within the meaning of the Credit Act 1984) or a 23
credit contract (within the meaning of the Consumer Credit (New South 24
Wales) Code)" from clause 6 (b). 25
Insert instead "a credit contract (within the meaning of the National Credit 26
Code as set out in Schedule 1 to the National Consumer Credit Protection Act 27
2009 of the Commonwealth)". 28
Page 10
Credit (Commonwealth Powers) Bill 2010
Consequential amendment of other legislation Schedule 2
[2] Clause 105 Partial exclusion of certain contracts from direct commerce 1
provisions 2
Omit clause 105 (2). Insert instead: 3
(2) In this clause: 4
credit contract means a credit contract within the meaning of the 5
National Credit Code as set out in Schedule 1 to the National 6
Consumer Credit Protection Act 2009 of the Commonwealth. 7
2.6 Farm Debt Mediation Act 1994 No 91 8
Section 7 Relationship with other Acts 9
Omit section 7 (3). 10
2.7 Interpretation Act 1987 No 15 11
Section 21 Meanings of commonly used words and expressions 12
Omit the definitions of Consumer Credit (New South Wales) Code and 13
Consumer Credit (New South Wales) Regulations from section 21 (1). 14
2.8 Law Enforcement (Powers and Responsibilities) Act 2002 15
No 103 16
Schedule 2 Search warrants under other Acts 17
Omit the matter relating to the Consumer Credit Administration Act 1995. 18
2.9 Legal Profession Regulation 2005 19
Clause 150 Loan applications 20
Omit "Consumer Credit (New South Wales) Code" from clause 150 (1). 21
Insert instead "National Credit Code as set out in Schedule 1 to the National 22
Consumer Credit Protection Act 2009 of the Commonwealth". 23
2.10 Local Government Act 1993 No 30 24
Section 651B Immobilisation of vehicles 25
Omit "(within the meaning of the Consumer Credit (New South Wales) Code)" 26
from section 651B (2) (c). 27
Insert instead "(within the meaning of the National Credit Code as set out in 28
Schedule 1 to the National Consumer Credit Protection Act 2009 of the 29
Commonwealth)". 30
Page 11
Credit (Commonwealth Powers) Bill 2010
Schedule 2 Consequential amendment of other legislation
2.11 Motor Dealers Act 1974 No 52 1
[1] Section 29CA Cooling off period 2
Omit "Consumer Credit (New South Wales) Code" from section 29CA (1). 3
Insert instead "National Credit Code as set out in Schedule 1 to the National 4
Consumer Credit Protection Act 2009 of the Commonwealth". 5
[2] Section 29CC Consequences of termination 6
Omit section 29CC (5). Insert instead: 7
(5) On termination of a contract under section 29CA, any tied loan 8
contract (within the meaning of the National Credit Code as set 9
out in Schedule 1 to the National Consumer Credit Protection 10
Act 2009 of the Commonwealth) is terminated. The regulations 11
may make provision for or with respect to the termination of the 12
tied loan contract. 13
2.12 Motor Dealers Regulation 2004 14
Clause 57 Protection of interest of third party 15
Omit "Consumer Credit (New South Wales) Code" from clause 57 (2). 16
Insert instead "National Credit Code as set out in Schedule 1 to the National 17
Consumer Credit Protection Act 2009 of the Commonwealth". 18
Page 12
Credit (Commonwealth Powers) Bill 2010
Savings, transitional and other provisions Schedule 3
Schedule 3 Savings, transitional and other 1
provisions 2
Part 1 General 3
1 Definitions 4
In this Schedule: 5
ASIC means the Australian Securities and Investments Commission. 6
former consumer credit legislation means any of the following (as in 7
force immediately before its repeal by Schedule 1 to this Act): 8
(a) the Consumer Credit (New South Wales) Act 1995 (including the 9
Consumer Credit (New South Wales) Code and the Consumer 10
Credit (New South Wales) Regulations), 11
(b) the Consumer Credit Administration Act 1995, 12
(c) the Consumer Credit Administration Regulation 2002, 13
(d) the Consumer Credit (New South Wales) Special Provisions 14
Regulation 2007. 15
Note. This definition is relevant for the carrying forward of certain provisions 16
(including investigation and enforcement powers) for the purposes of the 17
application in NSW, on a transitional basis, of a maximum annual percentage 18
rate for credit contracts, the regulation of finance broking and certain other 19
matters. 20
National Credit Code means the National Credit Code as set out in 21
Schedule 1 to the National Consumer Credit Protection Act 2009 of the 22
Commonwealth. 23
National Credit legislation means: 24
(a) the National Consumer Credit Protection Act 2009 of the 25
Commonwealth, and 26
(b) the National Consumer Credit Protection (Transitional and 27
Consequential Provisions) Act 2009 of the Commonwealth. 28
pre-Credit Code legislation means any of the following (as in force 29
immediately before its repeal by Schedule 1 to this Act): 30
(a) the Credit Act 1984, 31
(b) the Credit (Home Finance Contracts) Act 1984, 32
(c) the Credit (Savings and Transitional) Regulation 1984, 33
(d) the Credit (Home Finance Contracts) (Savings and Transitional) 34
Regulation 1984. 35
Page 13
Credit (Commonwealth Powers) Bill 2010
Schedule 3 Savings, transitional and other provisions
2 Regulations 1
(1) The Governor may make regulations containing provisions of a savings 2
or transitional nature consequent on: 3
(a) the enactment of this Act, or 4
(b) the transition from the application of the provisions of the former 5
consumer credit legislation to the application of the provisions of 6
the National Credit legislation. 7
(2) If such a regulation so provides, it has effect despite any other provision 8
of this Schedule. 9
(3) A provision of a regulation made under this clause may, if the 10
regulations so provide, take effect from the date of assent to the Act 11
concerned or a later date. 12
(4) To the extent to which any such provision takes effect from a date that 13
is earlier than the date of its publication on the NSW legislation website, 14
the provision does not operate so as: 15
(a) to affect, in a manner prejudicial to any person (other than the 16
State or an authority of the State), the rights of that person 17
existing before the date of its publication, or 18
(b) to impose liabilities on any person (other than the State or an 19
authority of the State) in respect of anything done or omitted to 20
be done before the date of its publication. 21
Part 2 Provisions consequent on enactment of this 22
Act 23
Division 1 Financial counselling trust fund 24
3 Continuation of fund 25
(1) The financial counselling trust fund established in accordance with the 26
regulations under the Credit Act 1984 (as in force immediately before 27
its repeal by Schedule 1 to this Act) is continued. 28
Note. The trust fund was established by a trust deed executed on 29
6 August 1993 by the Minister for Consumer Affairs. A copy of the trust deed is 30
available for inspection on the Department's website. 31
(2) Any money in the trust fund is to be applied for the following purposes: 32
(a) the provision of funding to community based non-profit 33
organisations that operate in New South Wales to provide 34
financial counselling or train persons in financial counselling, 35
Page 14
Credit (Commonwealth Powers) Bill 2010
Savings, transitional and other provisions Schedule 3
(b) the provision of funding to non-profit organisations that operate 1
within New South Wales which, or persons who, satisfy the 2
trustees of the fund that they can educate the public of New South 3
Wales in any matter related to the management of personal 4
finances. 5
Division 2 Maximum annual percentage rate for new credit 6
contracts 7
4 Definition and application of Division 8
(1) In this Division, annual percentage rate, associated, continuing credit 9
contract, credit contract, credit fees and charges, credit provider and 10
debtor have the same meanings as in the National Credit Code. 11
(2) This Division applies in relation to credit contracts entered into on or 12
after the commencement of this Division. 13
5 Credit contracts must not exceed maximum annual percentage rate 14
(1) Offence provision 15
A credit provider must not enter into a credit contract if the annual 16
percentage rate in respect of the credit contract exceeds 48% (the 17
maximum annual percentage rate) as calculated in accordance with 18
clause 7. 19
Maximum penalty: 100 penalty units. 20
(2) Civil effect 21
Any provision of a credit contract that imposes an annual percentage 22
rate that exceeds the maximum annual percentage rate is void to the 23
extent that it does so. 24
(3) If an amount prohibited by subclause (1) is paid, it may be recovered as 25
a debt. 26
(4) Interest charges and all credit fees and charges imposed or provided for 27
under a credit contract are to be included in calculating the maximum 28
annual percentage rate under the contract. 29
(5) For the purposes of subclause (4), credit fees and charges imposed or 30
provided for under a credit contract are taken to include the following, 31
whether or not payable under the contract: 32
(a) a fee or charge payable by the debtor to any person for an 33
introduction to the credit provider, 34
(b) a fee or charge payable by the debtor to any person for any 35
service if the person has been introduced to the debtor by the 36
credit provider, 37
Page 15
Credit (Commonwealth Powers) Bill 2010
Schedule 3 Savings, transitional and other provisions
(c) a fee or other charge payable by the debtor to the credit provider 1
for any service relating to the provision of credit, other than a 2
service referred to in paragraph (b). 3
(6) For the purposes of subclause (5) (a) and (b), it does not matter whether 4
or not there is an association between the person and the credit provider. 5
(7) Despite subclause (4), any credit fees or charges arising from the 6
establishment or maintenance of a temporary credit facility are not 7
required to be included for the purposes of calculating the maximum 8
annual percentage rate if: 9
(a) the credit provider is an authorised deposit-taking institution, and 10
(b) the debtor has or had an existing credit contract or debit account 11
with the authorised deposit-taking institution at the time the 12
temporary credit facility is or was established, and 13
(c) the temporary credit facility is related to the existing credit 14
contract or debit account. 15
(8) For the purposes of subclause (7), a temporary credit facility includes, 16
but is not limited to, an overdraft facility and a short term extension of 17
the total amount of credit available under an existing credit contract. 18
6 Enforcement of maximum annual percentage rate 19
(1) The provisions of the former consumer credit legislation that: 20
(a) confer jurisdiction on the Consumer, Trader and Tenancy 21
Tribunal, or on a State court, with respect to the contravention of 22
an obligation involving the maximum annual percentage rate 23
imposed under the former consumer credit legislation, and 24
(b) relate to the enforcement of that rate, 25
apply, despite the repeal of those provisions by Schedule 1 to this Act, 26
to and in respect of the maximum annual percentage rate imposed under 27
this Division with such modifications as are necessary. 28
(2) For the purposes of subclause (1), the provisions of the former 29
consumer credit legislation that relate to the enforcement of the 30
maximum annual percentage rate under that legislation include, without 31
limitation, provisions relating to the following: 32
(a) powers of investigation (including for supervisory purposes), 33
(b) the bringing of any proceedings, or the taking of any other action, 34
with respect to that rate, 35
(c) the imposition of a civil penalty for contravening an obligation 36
involving that rate. 37
Page 16
Credit (Commonwealth Powers) Bill 2010
Savings, transitional and other provisions Schedule 3
7 Calculation of maximum annual percentage rate 1
(1) For the purposes of calculating the maximum annual percentage rate 2
under a credit contract to which this Division applies, the rate must be 3
calculated as a nominal rate per annum, together with the compounding 4
frequency, in accordance with this clause. 5
(2) The maximum annual percentage rate is given by the following 6
formula: 7
i = nr100%
where: 8
n is the number of repayments per annum to be made under the credit 9
contract annualised, except that: 10
(a) if repayments are to be made weekly or fortnightly--n is to be 11
52.18 or 26.09, respectively, and 12
(b) if the contract does not provide for a constant interval between 13
repayments--n is to be derived from the interval selected for the 14
purposes of the definition of j mentioned below. 15
r is the solution of the following: 16
t t
Aj Rj + Cj
-----------------j
(1 + r)
= -----------------j
(1 + r)
j=0 j=0
where: 17
j is the time, measured as a multiple (not necessarily integral) of the 18
interval between contractual repayments that will have elapsed since the 19
first amount of credit is provided under the credit contract, except that 20
if the contract does not provide for a constant interval between 21
repayments an interval of any kind is to be selected by the credit 22
provider as the unit of time. 23
t is the time, measured as a multiple of the interval between contractual 24
repayments (or other interval so selected), that will elapse between the 25
time when the first amount of credit is provided and the time when the 26
last repayment is to be made under the contract. 27
Aj is the amount of credit to be provided under the contract at time j (the 28
value of j for the provision of the first amount of credit is taken to be 29
zero). 30
Rj is the repayment to be made at time j. 31
Cj is the fee or charge (if any) payable by the debtor at time j (j is taken 32
to be zero for any such fee or charge payable before the time of the first 33
amount of credit provided) in addition to the repayments Rj, being a 34
Page 17
Credit (Commonwealth Powers) Bill 2010
Schedule 3 Savings, transitional and other provisions
credit fee or charge that is ascertainable when the annual percentage rate 1
is calculated. 2
(3) The maximum annual percentage rate must be correct to at least the 3
nearest one hundredth of 1% per annum. 4
(4) In the application of the above formulae, reasonable approximations 5
may be made if it would be impractical or unreasonably onerous to 6
make a precise calculation. 7
(5) The tolerances that would apply under section 181 of the National 8
Credit Code in relation to the calculation of an amount of interest for the 9
purposes of that Code are taken to apply in relation to the calculation of 10
the maximum annual percentage rate for the purposes of this Division. 11
(6) If the credit contract is a continuing credit contract, the following 12
assumptions also apply to the calculation of the maximum annual 13
percentage rate: 14
(a) that the debtor has drawn down the maximum amount of credit 15
that the credit provider has agreed to provide under the contract, 16
(b) that the debtor will pay the minimum repayments specified in the 17
contract, 18
(c) if credit is provided in respect of payment by the credit provider 19
to a third person in relation to goods or services or cash supplied 20
by that third person to the debtor from time to time--that the 21
debtor will not be supplied with any further goods or services or 22
cash, 23
(d) if credit is provided in respect of cash supplied by the credit 24
provider to the debtor from time to time--that the debtor will not 25
be supplied with any further cash. 26
(7) For the purposes of the maximum annual percentage rate: 27
(a) the amount of credit is to be the amount (or the maximum 28
amount) required by the debtor, and 29
(b) the term for which credit is provided is to be the term (or the 30
maximum term) required by the debtor. 31
8 Repeal of Division 32
This Division is repealed at the end of the period of 12 months following 33
the commencement of this Division. 34
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Credit (Commonwealth Powers) Bill 2010
Savings, transitional and other provisions Schedule 3
Division 3 Other provisions 1
9 Continuation of maximum annual percentage rate--existing credit 2
contracts 3
(1) In this clause: 4
existing credit contract means a credit contract to which the former 5
consumer credit legislation applied immediately before its repeal by 6
Schedule 1 to this Act. 7
(2) The provisions of the former consumer credit legislation that relate to 8
the maximum annual percentage rate under an existing credit contract 9
(including, without limitation, provisions relating to the enforcement of 10
that rate, any powers of investigation with respect to that rate, including 11
for supervisory purposes, and the taking of any proceedings or other 12
action against a credit provider with respect to that rate) continue to 13
apply as if those provisions had not been repealed by Schedule 1 to this 14
Act. 15
(3) This clause is repealed at the end of the period of 12 months following 16
the commencement of this clause. 17
10 Provision of information and assistance to ASIC 18
(1) The Director-General of the Department of Services, Technology and 19
Administration, or a person authorised in writing by the 20
Director-General, may, on the Director-General's or authorised 21
person's own initiative or at the request of ASIC: 22
(a) provide ASIC with such documents and other information in the 23
possession or control of the Director-General that is reasonably 24
required by ASIC in connection with the performance or exercise 25
of its functions under the National Credit legislation, and 26
(b) provide ASIC with such other assistance as is reasonably 27
required by ASIC to perform or exercise a function or power 28
under the National Credit legislation. 29
(2) This clause has effect despite any other Act or law. 30
11 ASIC has certain functions and powers 31
(1) The Minister, or a person authorised in writing by the Minister, may 32
enter into an agreement or arrangement with ASIC for the performance 33
of functions or the exercise of powers by ASIC as an agent of the State, 34
even if those functions or powers are or may be conferred on another 35
person or body by or under a law of the State. 36
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Credit (Commonwealth Powers) Bill 2010
Schedule 3 Savings, transitional and other provisions
(2) An agreement or arrangement of a kind referred to in subclause (1) has 1
effect by force of this clause despite any provision of a law of the State 2
with respect to any function or power that is the subject of the agreement 3
or arrangement. 4
12 Pending proceedings before CTTT 5
Any proceedings relating to any matter arising under the provisions of 6
the former consumer credit legislation or the pre-Credit Code 7
legislation that were commenced in the Consumer, Trader and Tenancy 8
Tribunal before the commencement of this clause, but were not finally 9
determined as at that commencement, may continue to be dealt with or 10
otherwise determined (including for the purposes of any appeal or 11
rehearing in relation to those proceedings) as if those provisions had not 12
been repealed by Schedule 1 to this Act. 13
13 Regulation of finance broking 14
(1) The provisions of the former consumer credit legislation that relate to 15
the regulation of finance broking, including, without limitation: 16
(a) Part 1A of the Consumer Credit Administration Act 1995 and 17
Part 2 of the Consumer Credit Administration Regulation 2002, 18
and 19
(b) any relevant powers of enforcement or investigation (including 20
for supervisory purposes), and 21
(c) any provisions relating to the taking of any proceedings or other 22
action against a finance broker, 23
continue to apply in relation to finance broking activities as if those 24
provisions had not been repealed by Schedule 1 to this Act. 25
(2) A reference in subclause (1) to finance broking activities includes a 26
reference to the provision of credit assistance within the meaning of the 27
National Consumer Credit Protection Act 2009 of the Commonwealth. 28
(3) This clause is repealed on the day that is the Chapter 3 start day within 29
the meaning of the National Consumer Credit Protection (Transitional 30
and Consequential Provisions) Act 2009 of the Commonwealth. 31
14 Regulation of pre-Credit Code contracts 32
(1) In this clause: 33
pre-Credit Code contract means a contract to which the Credit Act 1984 34
or the Credit (Home Finance Contracts) Act 1984 applied immediately 35
before their repeal by Schedule 1 to this Act. 36
(2) The provisions of the former consumer credit legislation and the 37
pre-Credit Code legislation (including, without limitation, provisions 38
relating to enforcement, any powers of investigation, including for 39
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Credit (Commonwealth Powers) Bill 2010
Savings, transitional and other provisions Schedule 3
supervisory purposes, and the taking of any proceedings or other action) 1
continue to apply to and in respect of a pre-Credit Code contract as if 2
those provisions had not been repealed by Schedule 1 to this Act. 3
15 Construction of references to former consumer credit legislation 4
(1) In any document: 5
(a) a reference to any former consumer credit legislation extends to 6
the National Credit legislation, and 7
(b) a reference to a provision of any former consumer credit 8
legislation extends to the corresponding provision (if any) of the 9
National Credit legislation. 10
(2) In this clause, document means any Act (other than this Act) or 11
statutory instrument, or any other instrument, or any contract or 12
agreement. 13
Page 21
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